National
Minnesota gearing up for marriage fight
In symbolic move, guv vetoes 2012 ballot measure
Donald McFarland is leading the effort for Minnesotans United for all Families (Photo courtesy of McFarland)
Supporters of LGBT rights are gearing up for yet another fight at the ballot against a proposed constitutional amendment that would ban same-sex marriage.
This time around, the theater for battle is Minnesota.
Donald McFarland, spokesperson for the new coalition known as Minnesotans United for All Families, said nearly 1,000 people have already signed up to work against the amendment on the campaign website within 48 hours of passage by the legislature.
“They are signing up by the hundreds to help us,” McFarland said. “It’s incredible actually. The outpouring of support to what happened Saturday night is as great as I have ever seen in my political career — and I’ve been doing this for 30 years.”
On Saturday, the Minnesota State House gave final approval to the proposed constitutional amendment by a vote of 70-62. The State Senate had already passed the measure.
The Republican-controlled legislature’s approval sends the measure to the state electorate. If a majority of voters approves the marriage ban in 2012, it will become part of the state constitution.
Same-sex marriage is already prohibited in Minnesota by statute, but passage of the amendment would prohibit the legislature from legalizing same-sex marriage in the future or the state courts from finding a right to same-sex marriage in the state constitution.
A coalition of LGBT organizations — including national groups such as the Human Rights Campaign, the National Gay & Lesbian Task Force and Freedom to Marry as well as local groups OutFront Minnesota and Project 515— launched a new coalition, Minnesotans United for All Families, immediately upon approval of the amendment.
The plans for the nascent campaign are still being developed. An official campaign manager has yet to be named. Still, the campaign has already piqued the interest of supporters of same-sex marriage.
McFarland said the biggest goal at this point is to start a conversation with the Minnesota electorate about the love and commitment of same-sex couples and reminding voters that discrimination runs contrary to state values.
“The biggest component of the next many, many months is the fact that we’ll have an army of people, an army of volunteers, an army of smart, smart Minnesotans who want to help,” McFarland said. “That’s an advantage that we have ten-fold over the other side.”
McFarland, the de facto head of Minnesotans United for All Families until a campaign manager is selected, said he’s been involved in Minnesota politics for nearly 10 years.
In 2006, he was state director of American Voters, an organization that works to advance liberal-leaning policies and expand access to the ballot. Last year he worked as a communicators officer for the Minnesota Democratic Party.
McFarland’s LGBT portfolio includes working as the gay liaison in Philadelphia for Bill Clinton’s 1992 presidential campaign and serving as a board member for Project 515.
Money is already a concern for the new coalition. Proponents of the anti-gay amendment in Minnesota have pledged to raise $4.7 million to ensure its passage. McFarland said he wants to raise the amount dollar-for-dollar to thwart the effort.
“Things like fundraising goals are still being really fleshed out, but I will tell you that I am committed to raising $4.7 million to match what the other side claims it will spend,” McFarland said.
The output for the campaign is still under deliberation, but McFarland said he envisions paid television advertisements as well as additional paid media presence.
As supporters of same-sex marriage gear up for the fight, anti-gay groups, such as the Minnesota Family Council, are working for passage of the amendment.
The Minnesota Family Council had urged passage of the amendment, asserting that gays and lesbians eat human excrement, that gays and lesbians are more likely to be pedophiles and engage in bestiality, and that domestic partner benefits are a recruiting tool. The anti-gay group has since the scrubbed the language from its online promotions.
McFarland said maintaining a “respectful” tone throughout the campaign is a priority and criticized the anti-gay group’s tactics in the debate.
“It’s just vile language,” McFarland said. “It has no place here. It certainly has no place in Minnesota.”
The Minnesota Family Council didn’t respond to the Washington Blade’s requests for comment for this article.
Polling on the amendment in Minnesota is limited, but is promising for those working to defeat the measure. A poll published May 13 by the Minnesota Star Tribune found that 55 percent of respondents oppose adding such language banning same-sex marriage to the state constitution while 39 percent favor such a measure.
McFarland said he thinks the polling is “absolutely” comforting news, but shouldn’t be seen as a guarantee that Minnesota voters will reject the proposed constitutional amendment.
“A year-and-a-half is a long time, so who knows?” McFarland said. “We want to beat this ballot question and we’re going to do everything we can to do that.”
Issac Wood, a political scientist at the University of Virginia, said the 2012 presidential election — and the strength of President Obama — may have an impact on the result of the Minnesota ballot initiative.
“Often pundits and the media talk about referendums driving voter turnout and influencing elections, but in this case we may see the reverse,” Wood said. “If Obama is able to win a sizable victory in Minnesota again in 2012, which he won by 10 percentage points in 2008, perhaps he could draw enough socially liberal voters to the polls to defeat the marriage amendment as well.”
Wood said based on the history of the marriage ballot initiatives, Minnesota voters may approve the amendment. Still, he observed that national opinion on marriage has been evolving rapidly in the past year.
“Public opinion on the issue seems to be turning recently, with new polls showing nationwide approval of gay marriage on the rise,” Wood said. “Whether that approval has risen quickly enough to stem the tide of marriage amendments remains to be seen.”
Although there are promising poll numbers, a victory at the polls on the marriage issue is an extremely rare feat for LGBT rights supporters. Each time that a ban on same-sex marriage has come to voters at the state level, it has almost always been approved.
In 2006, Arizona voters rejected an amendment that would have made a ban on same-sex marriage and marriage-like unions part of the state constitution. However, voters passed a similar amendment in 2008 that banned only same-sex marriage.
Despite the dismal batting average, McFarland said he plans to draw on lessons from those earlier battles and has had conversations with those who’ve gone before him.
“We’re currently talking to others in other states that have gone before us in these battles over same-sex couples’ ability to get married,” McFarland said. “We very much intend to be mindful of all of them as we move forward.”
Prominent Minnesotans have already spoken out against the amendment. On Wednesday, Gov. Mark Dayton (D) penned a symbolic veto. Since the measure is a constitutional amendment, he doesn’t have the authority as governor to stop the initiative from becoming part of state law.
“Although I do not have the power to prevent this divisive and destructive constitutional amendment from appearing on the Minnesota ballot in November 2012, the legislature sent it to me in the form of a bill,” Dayton said. “Thus, symbolic as it may be, I am exercising my legal responsibility to either sign it or veto it. Without question, I am vetoing it.”
McFarland said he appreciates Dayton’s vocal opposition to the amendment — and said the governor was speaking out against it even before the legislature gave final approval — but he said he doesn’t think Dayton will play a large role in the campaign against the initiative.
“He’s the governor and his job is to be governor, not to be part of the campaign,” McFarland said. “His campaign was last year. Will he speak out about this issue? I believe he will because he feels passionately about this, like so many other Minnesotans.”
Another prominent politician from Minnesota has voiced a similar objection. On Monday, U.S. Sen. Al Franken (D-Minn.) also slammed the amendment in a statement to media outlets.
“Every Minnesotan deserves dignity and equal treatment under the law, and our state’s same-sex couples should have the same right to marry as anyone else — period,” Franken said. “This amendment would do nothing more than write discrimination into our state’s constitution and add to the barriers same-sex couples already face to the full recognition of their families. I’m hopeful that common sense and compassion will prevail and that this amendment will be defeated.”
Also earlier this week, White House spokesperson Shin Inouye issued a statement to the Washington Blade on President Obama’s position on the measure.
“The President has long opposed divisive and discriminatory efforts to deny rights and benefits to same sex couples or to take such rights away,” Inouye said. “While he believes this is an issue best addressed by the states, he also believes that committed gay couples should have the same rights and responsibilities afforded to any married couple in this country.”
The statement doesn’t explicitly mention the proposed constitutional amendment in Minnesota. Additionally, the statement reaffirms Obama’s lack of support for same-sex marriage rights by saying the issue is “best addressed by the states.”
McFarland said he’s “thrilled” the White House issued a statement, but dodged on whether he’d like to see more from Obama over the course of the campaign against the amendment.
“I really have no answer to that,” McFarland said. “I’m not going to make a call in the press to the White House. I’m not comfortable with that.”
Federal Government
4th Circuit rules gender identity is a protected characteristic
Ruling a response to N.C., W.Va. legal challenges
BY ERIN REED | The 4th U.S. Circuit Court of Appeals ruled Monday that transgender people are a protected class and that Medicaid bans on trans care are unconstitutional.
Furthermore, the court ruled that discriminating based on a diagnosis of gender dysphoria is discrimination based on gender identity and sex. The ruling is in response to lower court challenges against state laws and policies in North Carolina and West Virginia that prevent trans people on state plans or Medicaid from obtaining coverage for gender-affirming care; those lower courts found such exclusions unconstitutional.
In issuing the final ruling, the 4th Circuit declared that trans exclusions were “obviously discriminatory” and were “in violation of the equal protection clause” of the Constitution, upholding lower court rulings that barred the discriminatory exclusions.
The 4th Circuit ruling focused on two cases in states within its jurisdiction: North Carolina and West Virginia. In North Carolina, trans state employees who rely on the State Health Plan were unable to use it to obtain gender-affirming care for gender dysphoria diagnoses.
In West Virginia, a similar exclusion applied to those on the state’s Medicaid plan for surgeries related to a diagnosis of gender dysphoria. Both exclusions were overturned by lower courts, and both states appealed to the 4th Circuit.
Attorneys for the states had argued that the policies were not discriminatory because the exclusions for gender affirming care “apply to everyone, not just transgender people.” The majority of the court, however, struck down such a claim, pointing to several other cases where such arguments break down, such as same-sex marriage bans “applying to straight, gay, lesbian, and bisexual people equally,” even though straight people would be entirely unaffected by such bans.
Other cases cited included literacy tests, a tax on wearing kippot for Jewish people, and interracial marriage in Loving v. Virginia.
See this portion of the court analysis here:
Of particular note in the majority opinion was a section on Geduldig v. Aiello that seemed laser-targeted toward an eventual U.S. Supreme Court decision on discriminatory policies targeting trans people. Geduldig v. Aiello, a 1974 ruling, determined that pregnancy discrimination is not inherently sex discrimination because it does not “classify on sex,” but rather, on pregnancy status.
Using similar arguments, the states claimed that gender affirming care exclusions did not classify or discriminate based on trans status or sex, but rather, on a diagnosis of gender dysphoria and treatments to alleviate that dysphoria.
The majority was unconvinced, ruling, “gender dysphoria is so intimately related to transgender status as to be virtually indistinguishable from it. The excluded treatments aim at addressing incongruity between sex assigned at birth and gender identity, the very heart of transgender status.” In doing so, the majority cited several cases, many from after Geduldig was decided.
Notably, Geduldig was cited in both the 6th and 11th Circuit decisions upholding gender affirming care bans in a handful of states.
The court also pointed to the potentially ridiculous conclusions that strict readings of what counts as proxy discrimination could lead to, such as if legislators attempted to use “XX chromosomes” and “XY chromosomes” to get around sex discrimination policies:
Importantly, the court also rebutted recent arguments that Bostock applies only to “limited Title VII claims involving employers who fired” LGBTQ employees, and not to Title IX, which the Affordable Care Act’s anti-discrimination mandate references. The majority stated that this is not the case, and that there is “nothing in Bostock to suggest the holding was that narrow.”
Ultimately, the court ruled that the exclusions on trans care violate the Equal Protection Clause of the Constitution. The court also ruled that the West Virginia Medicaid Program violates the Medicaid Act and the anti-discrimination provisions of the Affordable Care Act.
Additionally, the court upheld the dismissal of anti-trans expert testimony for lacking relevant expertise. West Virginia and North Carolina must end trans care exclusions in line with earlier district court decisions.
The decision will likely have nationwide impacts on court cases in other districts. The case had become a major battleground for trans rights, with dozens of states filing amicus briefs in favor or against the protection of the equal process rights of trans people. Twenty-one Republican states filed an amicus brief in favor of denying trans people anti-discrimination protections in healthcare, and 17 Democratic states joined an amicus brief in support of the healthcare rights of trans individuals.
Many Republican states are defending anti-trans laws that discriminate against trans people by banning or limiting gender-affirming care. These laws could come under threat if the legal rationale used in this decision is adopted by other circuits. In the 4th Circuit’s jurisdiction, West Virginia and North Carolina already have gender-affirming care bans for trans youth in place, and South Carolina may consider a similar bill this week.
The decision could potentially be used as precedent to challenge all of those laws in the near future and to deter South Carolina’s bill from passing into law.
The decision is the latest in a web of legal battles concerning trans people. Earlier this month, the 4th Circuit also reversed a sports ban in West Virginia, ruling that Title IX protects trans student athletes. However, the Supreme Court recently narrowed a victory for trans healthcare from the 9th U.S. Circuit Court of Appeals and allowed Idaho to continue enforcing its ban on gender-affirming care for everyone except the two plaintiffs in the case.
Importantly, that decision was not about the constitutionality of gender-affirming care, but the limits of temporary injunctions in the early stages of a constitutional challenge to discriminatory state laws. It is likely that the Supreme Court will ultimately hear cases on this topic in the near future.
Celebrating the victory, Lambda Legal Counsel and Health Care Strategist Omar Gonzalez-Pagan said in a posted statement, “The court’s decision sends a clear message that gender-affirming care is critical medical care for transgender people and that denying it is harmful and unlawful … We hope this decision makes it clear to policy makers across the country that health care decisions belong to patients, their families, and their doctors, not to politicians.”
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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues, and community. Reed also is a social media consultant and public speaker.
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The preceding article was first published at Erin In The Morning and is republished with permission.
National
GLSEN hosts Respect Awards with Billy Porter, Peppermint
Annual event aims to ‘inspire a lot of people to get active’
GLSEN will host its annual Respect Awards April 29 in New York, with guests including Miss Peppermint and Billy Porter.
Respect Awards director Michael Chavez said that the event will be moving.
“It will inspire a lot of people to get active and take action in their own communities and see how much more work there is to do, especially with all of the harmful things happening,” he said.
At the event, they will recognize the Student Advocate of the Year, Sophia T. Annually, GLSEN recognizes a student from around the country who is impacting their community.
“Sophia is doing incredible work advocating for inclusive sex education that is LGBTQ+ affirming, working with Johns Hopkins University to implement curriculum.” Chavez said.
Chavez calls the students that attend the Respect Awards the “biggest celebrities” of the evening.
“It is really important for the adults, both the allies and the queer folks, to hear directly from these queer youth about what it’s like to be in school today as a queer person,” he said.
GLSEN is a queer youth advocacy organization that has been working for more than 30 years to protect LGBTQ youth.
“GLSEN is all hands on deck right now, because our kids are under direct attack and have been for years now,” said actor Wilson Cruz.
Cruz is the chair of GLSEN’s National Board, which works to fundraise and strategize for the organization.
“I think we are fundamental to the education of LGBTQ students in school,” he said. “We advocate for more comprehensive support at the local, national, and federal levels so our students are supported.”
Chavez is one of the students that was impacted by this work. He led his school’s GSA organization and worked with GLSEN throughout his youth.
Cruz said Chavez is doing what he hopes today’s GLSEN students do in the future, which is pay the work forward.
“There’s nothing more powerful than people who have experienced the work that GLSEN does and then coming back and allowing us to expand on that work with each generation that comes forward,” he said.
Florida
Homeless transgender woman murdered in Miami Beach
Andrea Doria Dos Passos attacked while she slept
Gregory Fitzgerald Gibert, 53, who was out on probation, is charged with the second-degree murder of 37-year-old Andrea Doria Dos Passos, a transgender Latina woman who was found deceased in front of the Miami Ballet company facility by a security guard this past week.
According to a Miami Beach Police spokesperson the security guard thought Dos Passos was sleeping in the entranceway around 6:45 a.m. on April 23 and when he went to wake her he discovered the blood and her injuries and alerted 911.
She was deceased from massive trauma to her face and head. According to Miami Beach police when video surveillance footage was reviewed, it showed Dos Passos lying down in the entranceway apparently asleep. WFOR reported: In the early morning hours, a man arrived, looked around, and spotted her. Police said the man was dressed in a black shirt, red shorts, and red shoes.
At one point, he walked away, picked up a metal pipe from the ground, and then returned. After looking around, he sat on a bench near Dos Passos. After a while, he got up and repeatedly hit her in the head and face while she was sleeping, according to police.
“The male is then seen standing over her, striking her, and then manipulating her body. The male then walks away and places the pipe inside a nearby trash can (the pipe was found and recovered in the same trash can),” according to the arrest report.
Police noted that in addition to trauma on her face and head, two wooden sticks were lodged in her nostrils and there was a puncture wound in her chest.
Victor Van Gilst, Dos Passos’s stepfather confirmed she was trans and experiencing homelessness.
“She had no chance to defend herself whatsoever. I don’t know if this was a hate crime since she was transgender or if she had some sort of interaction with this person because he might have been homeless as well. The detective could not say if she was attacked because she was transgender,” said Van Gilst.
“She has been struggling with mental health issues for a long time, going back to when she was in her early 20s. We did everything we could to help her. My wife is devastated. For her, this is like a nightmare that turned into reality. Andrea moved around a lot and even lived in California for a while. She was sadly homeless. I feel the system let her down. She was a good person,” he added.
The Miami Police Department arrested Gibert, collected his clothing, noting the red shorts were the same type in the video and had blood on them. Blood was also found on his shoes, according to police. He was taken into custody and charged.
“The suspect has an extensive criminal record and reportedly was recently released from custody on probation for prior criminal charges. Police apprehended the suspect in the city of Miami and the investigation is currently ongoing. This case is further evidence that individuals need to be held accountable for prior violent crimes for the protection of the public. We offer our sincere condolences to the family and friends of the victim,” Miami Beach Mayor Steve Meiner said in a statement.
Joe Saunders, senior political director with LGBTQ rights group Equality Florida, told the Miami Herald that “whenever a transgender person is murdered, especially when it is with such brutality, the question should be asked about whether or not this was a hate-motivated crime.”
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